Zimmerman To Seek Stand Your Ground Hearing

By Big Tent Democrat, Section Crime in the News
Posted on Thu Aug 09, 2012 at 04:23:13 PM EST
Tags: George Zimmerman, Trayvon Martin (all tags)

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Converse civilly please.

Update (TL): I wrote the following last night forgot to post it: [More...]

Mark O'Mara, the attorney defending George Zimmerman on a second degree murder charge for the shooting death of Trayvon Martin, has issued a press release stating they will request a "Stand Your Ground" hearing. He says it will take several months to prepare for it.

The reason for the press release? It seems like he wants people to be patient and stop expecting major news on a daily or even weekly basis:

In the case against George Zimmerman, a “Stand Your Ground” hearing will essentially be a mini-trial. Most of the arguments, witnesses, experts, and evidence that the defense would muster in a criminal trial will be presented in the “Stand Your Ground” hearing.
There are significant differences between a “Stand Your Ground” hearing and a trial. In a “Stand Your Ground” hearing, there is no jury; the decision is made by the judge alone. In a criminal trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt, but in a “Stand Your Ground” hearing, the burden is on the defense to prove that the evidence fits the conditions of the “Stand Your Ground” law. If the Court rules in favor of the defendant in a “Stand Your Ground” hearing, not only are criminal charges dismissed, the defendant is also immune from civil actions related to the shooting. The primary focus of a “Stand Your Ground” hearing is whether George Zimmerman reasonably believed that his use of his weapon was necessary to prevent great bodily harm to himself at the hands of Trayvon Martin.
Preparing for the “Stand Your Ground” hearing will require the same time and resources that would be necessary to prepare for a trial. It will take time to collect and submit reciprocal discovery, depose witnesses and experts, and identify evidence to be submitted during the hearing. We anticipate this will still take several months. Mr. O’Mara, again, urges everyone to be patient during this process and to reserve judgment until the evidence is presented in the “Stand Your Ground” hearing.

There's no statement about filing a writ of prohibition over Judge Lester's refusal to recuse himself. If the judge rules against Zimmerman at the SYG hearing, Zimmerman can seek a writ of prohibition at that time. (See this case decided in June, 2012 that explains.)

More discovery was released today. I have uploaded the redacted version here. Please do not link to or discuss the contents of the unredacted version that was recalled by the state's attorney and sent in error.

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Zimmerman To Seek Stand Your Ground Hearing | 94 comments (94 topical)

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If it is true that a defendant-favorable outcome (5.00 / 2) (#12)
by Peter G on Thu Aug 09, 2012 at 07:13:07 PM EST

at a Florida SYG hearing bars a civil action (presumably meaning a private lawsuit by the Martins against Zimmerman for wrongful death), how can that aspect of the law be valid under the Due Process Clause, unless the Martins are allowed to have a lawyer participate in the hearing to protect their interests?

It bars civil action by everyone (none / 0) (#18)
by Abdul Abulbul Amir on Fri Aug 10, 2012 at 07:04:25 AM EST

Why assume only one lawyer representing Martins? The civil action bar applies to everyone. Can you imagine a process where everyone that might want to file a claim could be represented? They would need to hold the hearing in a football stadium.

In any case, the SYG hearing is about the judge weighing facts. The Martin's lawyer would appear to have nothing new to offer.

Sure, AbAbAm, no problem (5.00 / 2) (#32)
by Peter G on Fri Aug 10, 2012 at 12:39:17 PM EST

If there are 60,000 people (a stadium-full) with prima facie civil claims against GZ arising out of his shooting of TM, they I would agree that each and every one of them would have the same due process complaint. Of course, I doubt that there are. And I cannot agree that the right to be heard before being divested by law of property (a civil cause of action is a form of "property") -- which is the essence of 14th Amendment due process -- is dependent on whether a judge would say, in advance, that you have something "new to offer." In fact, now that I think of it, this provision of the SYG statute would seem also to be unconstitutional under Article I, section 16(b), of the Florida Constitution, establishing "rights" of "victims of crime."


Not only those (1.00 / 3) (#42)
by Abdul Abulbul Amir on Fri Aug 10, 2012 at 02:44:41 PM EST

Not only those with prima facie civil claims but anyone that may be an heir to one of those. We are just talking those with immediate claims but claims that may in arise the future. A nearby resident may feel GZ's actions lowered a property value and sue.

The point remains that the number of potential civil suits against GZ is unlimited.

You may feel it is perfectly reasonable to hound a person that successfully defends his life into poverty through repeated law suits, but the legislature disagrees.

If GZ is successful at the SYG hearing, it means the fault with the matter lies not with GZ, but with Martin's poor victim selection choice.

Baloney (5.00 / 1) (#43)
by bmaz on Fri Aug 10, 2012 at 03:17:15 PM EST

The actual immunity provision in 776.032 is stated directly as to the "use of such force". it does not contemplate five million plaintiffs glomming out of the woodwork for bogus property value claims.

Secondly, as I indicated previously, it is an immunity statute. The defendant would get sued, assert the immunity and then

The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

No "victim selection" (5.00 / 1) (#83)
by Yman on Sun Aug 12, 2012 at 07:43:08 AM EST

... unless you're talking about Zimmerman's choice(s).


Or (5.00 / 2) (#84)
by bmaz on Sun Aug 12, 2012 at 12:38:18 PM EST

Unless you are talking about Martin's choices as well. They BOTH made choices and decisions that led to the physical confrontation.


True, except ... (none / 0) (#85)
by Yman on Sun Aug 12, 2012 at 06:08:14 PM EST

... Abdul keeps using the phrase "Martin's poor victim selection". Leaving aside the numerous problems with that phrase, in terms of either party "selecting" the other, it was Zimmerman who did the "selecting".


Because he picked (none / 0) (#86)
by bmaz on Sun Aug 12, 2012 at 06:14:20 PM EST

Martin out to start with? Okay I buy that as "selecting" but not as selecting a victim. Hard to deny it was not the first active step that eventually led to a tragedy though.


There are many steps that lead to tragedy. (5.00 / 1) (#87)
by Abdul Abulbul Amir on Mon Aug 13, 2012 at 07:25:27 AM EST

If the convenience store clerk had been slower it all may never have happened as well. If GZ had not cleaned his windshield earlier that week it may never have happened as well.

Someone made the choice to knock Zimmerman to the ground and to repeatedly strike Zimmerman with fists and sit on Zimmerman and beat the snot out of him. Until the first fist struck, it was just two guys walking around. IMHO, it is that choice that is best described as displaying poor victim selection skills.

Choosing to use someone carrying a firearm as a punching bag can be a very poor choice indeed.

The "poor victim selection skills" ... (5.00 / 1) (#88)
by Yman on Mon Aug 13, 2012 at 08:10:58 AM EST

... were (IMO) exhibited when Zimmerman chose to pursue an unarmed teenager into a dark pathway rather than waiting for the police to follow up on his baseless suspicions.

BTW - "Beat the snot out of him" and "punching bag"?
Based on a single punch to the nose and two, tiny lacerations?

Hardly.


"Based on a single punch..." (5.00 / 1) (#90)
by Gandydancer on Mon Aug 13, 2012 at 12:54:42 PM EST

...to the nose and two, tiny lacerations?"

I see you've been paying attention. Not.


Been paying attention just fine (none / 0) (#91)
by Yman on Mon Aug 13, 2012 at 01:28:26 PM EST

3/4 of an inch and 1/5 of an inch.


Is english your second language? (none / 0) (#94)
by Abdul Abulbul Amir on Tue Aug 14, 2012 at 08:30:51 AM EST

A 3/4 inch bleeding laceration is "tiny?"


: Nope - my English is just fine (none / 0) (#95)
by Yman on Tue Aug 14, 2012 at 08:40:35 AM EST

Probably because I've had many such cuts/injuries over my lifetime. Although, to be fair, some of mine actually required a bandaid.

Good question...I wonder of any Florida SYG (none / 0) (#24)
by ruffian on Fri Aug 10, 2012 at 09:41:18 AM EST

cases have been appealed on those grounds. Is there even an avenue for appeal?


Yes, SYG decisions (none / 0) (#27)
by KeysDan on Fri Aug 10, 2012 at 10:02:50 AM EST

may be appealed to the Florida District Court of Appeals.


Has a SYG appeal (none / 0) (#28)
by CoralGables on Fri Aug 10, 2012 at 11:13:21 AM EST

every been won? I'm guessing no.


: Sorry, I do not know the (none / 0) (#31)
by KeysDan on Fri Aug 10, 2012 at 12:36:56 PM EST

statistics on DCA appellate decisions on SYG. The fact that the judge's decision on SYG may be appealed (by the defense or prosecution) is important to this step in the applicable criminal justice system. Generally, appeals are not without difficulties, be that appeal from trial, and, probably more so, from an SYG finding. So much would depend on an appellate finding of abuse of the judge's discretion. For that matter, an immunity decision by the judge in favor of the defendant does not seem to be a sure thing either. Judges have been confronted with cases like that in Naples where immunity was defeated owing to the response to the assailant of 75 stab wounds. All of which is important to the perceptions or misperceptions of SYG (e.g., that it is a sure-fire get-out-of-jail free card).

: Guess again (none / 0) (#36)
by MJW on Fri Aug 10, 2012 at 01:30:03 PM EST

Hair v. State, 17 So. 3d 804 (Fla. 1st DCA 2009)

Petitioner was aware that Harper, the victim, had unlawfully and forcibly entered the vehicle when he was shot. Hair was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1). The motion to dismiss should have been granted and we therefore issued the writ of prohibition.

Appealed by a rights-divested (none / 0) (#33)
by Peter G on Fri Aug 10, 2012 at 12:41:26 PM EST

putative civil complainant (i.e., the shooting victim's survivors)? I doubt that, if they can't even intervene and be heard in the trial court at the SYG hearing.


For what it's worth (none / 0) (#41)
by bmaz on Fri Aug 10, 2012 at 02:43:51 PM EST

I think the due process question you raised above is a decent one. I don't know the answer; it would be easy if there was uniformity of parties or at least opportunity for parties. As you note, there is not.

It appears to just be issue preclusion by way of granted immunity. Which still does not address your main question of due process for a party that cannot participate. Maybe the state is deemed to have fully represented the victim for purposes of that issue and therefore issue preclusion?


Yes, those are the (legal) issues (5.00 / 2) (#45)
by Peter G on Fri Aug 10, 2012 at 05:27:17 PM EST

and questions as I see them also. Well framed, bmaz. And of course, despite AAA's assumptions, I have taken neither side in the TM/GZ discussions. I'm just posing neutral questions about the fairness and constitutionality of this law.


I don't understand the constitutionality (none / 0) (#51)
by me only on Fri Aug 10, 2012 at 08:20:20 PM EST

question. Doesn't a prosecutor have immunity from civil liability? How about the police and the judge? If these are permissible, it would make sense that if a person is deemed to have committed a lawful act, they cannot be sued.


I did not suggest that civil immunities (5.00 / 1) (#52)
by Peter G on Fri Aug 10, 2012 at 09:11:14 PM EST

are invalid and unconstitutional. I said there was a serious question whether depriving someone of the right to sue based on the results of a contested factfinding hearing in which they are not allowed to participate and protect their interests could well be a procedural due process violation. I also pointed to a section of the Florida Constitution on crime victims' "rights."


If the judge finds in favor of Zimmerman in the (none / 0) (#54)
by me only on Fri Aug 10, 2012 at 09:17:24 PM EST

SYG motion, there is no crime, ergo there are no crime victims.


I give up (5.00 / 3) (#55)
by Peter G on Fri Aug 10, 2012 at 09:22:23 PM EST

You are just not getting the point, or refusing to. The Martins have property rights at stake in the SYG hearing. Hence, it is arguably a due process violation not to give their lawyer a participatory role. You cannot look at it from the perspective of after the hearing.


Your right (none / 0) (#57)
by lousy1 on Fri Aug 10, 2012 at 09:38:44 PM EST

I don't get it.

Does every criminal case - no matter how unfounded- require that the interests of the potential beneficiaries of a wrongfull conviction be represented?


No (5.00 / 1) (#59)
by Peter G on Fri Aug 10, 2012 at 09:45:55 PM EST

Normally, even an acquittal wouldn't prevent a later lawsuit by self-declared representatives of a victim. See O.J. case. What is different here is that if the defendant wins the SYG hearing, he is totally immunized against any attempt by an alleged victim to sue civilly. The right to sue at all is taken away. That sounds like a deprivation of property by state law, without a right to be heard.


I think understand your point , but (none / 0) (#62)
by lousy1 on Fri Aug 10, 2012 at 10:18:17 PM EST

The fact that there is no basis for a criminal charge is not the same as a lack of conviction in other criminal cases.

I seems that the intent of legislature was to shield a defendant under those circumstances, when charges should never have been brought forward.

Seems reasonable to me. Plaintiffs are still allowed to sue for other insults.


The State of Florida would be (none / 0) (#63)
by IrishGerard on Fri Aug 10, 2012 at 11:51:43 PM EST

legally barred from any further criminal prosecution in the matter.

however, the civil immunity element of SYG is not as clear cut.
The Martins would not be legally prohibited from filing a civil suit against Zimmerman. But if the plaintiff is unsuccessful, they will be on the hook for Zimmerman's attorney's fees and lost wages [776.032 (3)]

so there would be considerable risk in bringing a wrongful death suit. especially if the potential of losing is great, given that the defendant has been granted immunity from criminal prosecution as a result of a justifiable use of force ruling.


Who's the victim here? (none / 0) (#64)
by Dalek1138 on Sat Aug 11, 2012 at 04:39:35 AM EST

You believe that the martins have standing to sue George Zimmerman because they are the victims of a crime, correct?

That narrative has been created by the media and other interested parties outside of court. A SYG hearing is a legal hearing to determine, based on evidence presented, who the victim is. Either george Zimmerman acted in self defense, and was thus the victim of assault, or enough evidence exists to continue to trial on the theory that George Zimmerman acted with undue force ( or whatever the prosecutions theory may be)

The rights of the victim are not at issue and are not being challenged. A SYG hearing simply decides which of 2 parties IS the victim. Then to the victim go the spoils of victim hood, or something.

I don't know if this SYG hearing should have occurred earlier or not, since the media focus on this case makes that kind of judgement pointless. Heck, all we've seen of the courtroom so far really is some posturing over bail for the last 6 months.

TVs law and order usually has that kind of thing wrapped up in about 20 seconds with time for a commercial break and an impromptu meeting of the attorneys involved at the local bar so they can remind each other of their ethical responsibilities over a shared drink.

(and a big thank you to jeralyn and staff for your work on this case. It's a huge undertaking given said media, umm, insert word of choice "coverage" this has been exposed to, your site has been enormously helpful in staying on top of this case)


: No, Dalek, not correct (5.00 / 3) (#71)
by Peter G on Sat Aug 11, 2012 at 11:11:53 AM EST

You believe that the martins have standing to sue George Zimmerman because they are the victims of a crime, correct?

No, I don't believe that or disbelieve it. I believe that they have a prima facie claim to be such, and that due process would then seem to give them a right to be heard at any proceeding that the State establishes for the purpose of determining whether they are or are not "victims," the result of which would be to take away conclusively their right to sue on that basis. As I have said over and over, in various ways, in my comments on this thread, I don't believe people's procedural rights can be fairly granted or denied by deciding in advance whether you think they are right or wrong on the merits -- neither accused criminals nor alleged victims.

Right to Sue a Property Right? (none / 0) (#66)
by RickyJim on Sat Aug 11, 2012 at 07:38:34 AM EST

Where and when did the right to sue somebody become a property right? It sounds bizarre to me. State governments take away people's property all the time. What makes this sort of alleged "property" different? The fact that the legislature passed a law means due process was involved.


Lots of legal concepts seem "bizarre" (5.00 / 2) (#74)
by Peter G on Sat Aug 11, 2012 at 03:59:15 PM EST

to non-lawyers. Yet (mostly) they exist for good reasons that are beneficial to society. As for this one, you could start with a 2011 Florida Supreme Court case, relying for precedent on U.S. Supreme Court and earlier Florida decisions. Look in that decision starting under "Analysis" or search on the term "cause of action."


It Still Seems Bizarre (none / 0) (#76)
by RickyJim on Sat Aug 11, 2012 at 05:10:41 PM EST

I guess any attempt at tort reform by restricting the right to sue will be considered a violation of due process by this theory. Of course those who disagree with you will claim that what is good for lawyers is not necessarily "beneficial to society".


: No offense intended, but once again (5.00 / 3) (#77)
by Peter G on Sat Aug 11, 2012 at 06:28:52 PM EST

you "guess" wrong. The right-wing corporate-protection racket known as "tort reform" is in no way endangered by the due process issue I raised. And no, law is not based on what is "good for lawyers."

If the prosecution cuts a deal in a case (none / 0) (#58)
by me only on Fri Aug 10, 2012 at 09:41:47 PM EST

in order to get testimony, the grant immunity, correct?

I have never then heard of anyone in witness protection being sued by the victims. Is this incorrect?


Maybe, and no (none / 0) (#75)
by Peter G on Sat Aug 11, 2012 at 04:05:52 PM EST

As for your first question, a plea deal may or may not confer some sort of immunity. But that is immunity from prosecution; I've never seen or heard of a deal that purported to confer immunity from civil liability for past acts. As for your second, yes, you are incorrect. There have been some lawsuits against protected informants over their criminal activities. It can be very hard to find and thus to sue them, though.


: Peter G is correct (none / 0) (#78)
by bmaz on Sat Aug 11, 2012 at 08:55:21 PM EST

Criminal immunity grants, whether transitional blanket immunity or use immunity, do not carry over to civil actions. At least not as to preclusion anyway; such a grant will make a case weaker because there is no criminal conviction, and in many cases will result in defendants much harder to attach with process.

they have no interests (none / 0) (#47)
by TeresaInPa on Fri Aug 10, 2012 at 06:19:44 PM EST

if he is not guilty of a thing except defending himself, what possible interests can they have?


: They have a significant interest (5.00 / 4) (#49)
by Peter G on Fri Aug 10, 2012 at 07:21:50 PM EST

in the process by which it is determined whether GZ is or is not "guilty of a thing except defending himself." Of course, if you already know the Truth before the hearing, then sure, you (like AAA) can determine to your own satisfaction, in advance, that they have no interest.

interesting but unavailing (none / 0) (#65)
by jpe on Sat Aug 11, 2012 at 07:06:41 AM EST

Immunity, no less than the substantive elements of the tort, are constitutive of the property interest; where there's immunity, there's no property interest and accordingly no violation of due process.


Conditions Precedent (none / 0) (#72)
by cboldt on Sat Aug 11, 2012 at 01:10:01 PM EST

The original poster wonders how the grant of immunity can be obtained absent input from the other player in the incident. IOW, Zimmerman doesn't have immunity, yet, so one can't use "he has immunity" to deny participation to Martin's estate. IOW, there is no immunity, yet, so it is premature to say that the property right is non-existent due to the presence of immunity.

Martins can sue Zimmerman today, if they want to. If the property interest at stake is the right to sue, that has not been extinguished, and won't be, even if immunity is granted. Sue away. Nothing in the way, that I can see.


What happens if the order is reversed? (none / 0) (#73)
by cboldt on Sat Aug 11, 2012 at 01:55:33 PM EST

Is there a barrier to civil suit pending the outcome of criminal trial? I'm wondering the ramifications if "the order got reversed" and a civil court held a Dennis hearing, and found in favor of defendant. Is the criminal proceeding cut off? Can a civil proceeding cut off the power of the prosecutor to mount a charge?


What authority is there... (none / 0) (#79)
by bmaz on Sat Aug 11, 2012 at 09:08:26 PM EST

...for a Dennis hearing being appurtenant to anything but a criminal proceeding? Maybe I have missed something, but it looks like a criminal device. Traditional tort justification defense can be argued in a civil context, but fail to see how that could extrapolate back to a criminal setting and proof standard.


No precedent (none / 0) (#81)
by cboldt on Sat Aug 11, 2012 at 09:31:08 PM EST

There's no precedent that I am aware of, of a civil action being commenced before a pending criminal matter is concluded. That said, the statute doesn't limit the "court" that finds immunity to a criminal court. I assume the point is that a person who is not charged with a crime might be sued just the same.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

That is the nature of the civil immunity. It isn't immunity from suit, it is an awarding of costs, expenses, and compensation.

There might be something (other than risk aversion by plaintiff) that stays civil action pending resolution of criminal action, so the effect I was wondering about can't ever come about.


: Interesting thought (none / 0) (#82)
by bmaz on Sat Aug 11, 2012 at 10:16:32 PM EST

And I recognize it is theoretical. Still, as the "SYG" provision is a creature of the "crimes" portion of Florida statutory law, I would guess it could not be operated in a civil setting without, or before, a criminal process.
Pretty interesting and cogent thought though, as was Peter G's at the top of this thread.

Bar to Civil Action (none / 0) (#96)
by boar d laze on Tue Aug 14, 2012 at 01:19:48 PM EST

The 776.032 Motion for Immunity (including the hearing) IS all the due process that a potential civil claimant is ever going to get.

Constitutional? Ask ALEC.


Converse civilly please (none / 0) (#1)
by CoralGables on Thu Aug 09, 2012 at 04:31:19 PM EST

as red meat is thrown into the ring to appease the masses until Olympics come back at 8ET

Doesn't seem like this Lester would be very (none / 0) (#2)
by sarcastic unnamed one on Thu Aug 09, 2012 at 04:39:29 PM EST

receptive to a SYG pleading, since much will likely rely on how much credibility he will give GZ's testimony...

Even without Zimmerman's testimony... (5.00 / 2) (#4)
by redwolf on Thu Aug 09, 2012 at 05:10:06 PM EST

There doesn't seem to be much of a case against self defense.

Dead kid shot once in the chest. No other wounds.
Shooter visibly beaten with wounds to the back of his head indicating head trauma.
Witnesses to the effect that Travyon was beating George and wouldn't stop when told that the witness was going to call 911.
With no physical damage to Trayvon beyond the gun shoot wound you don't really have any evidence that Zimmerman started altercation beyond hearsay from DeeDee.

Can anyone poke holes that with actual evidence?


Other than Zimmerman... (5.00 / 1) (#7)
by unitron on Thu Aug 09, 2012 at 06:18:49 PM EST

...how many of the witnesses said they actually saw Martin striking him?

I know there was one, who later backpedalled a bit, but did anyone else say they saw any more than some wrestling around on the ground?


I am not certain that makes much difference... (none / 0) (#13)
by Cashmere on Thu Aug 09, 2012 at 07:14:53 PM EST

in a self defense claim. If there is one witness and Zimmerman's obvious injuries, how can self-defense be proven wrong? I understand in SYG that the burden is on the defense, and perhaps if there is doubt, SYG will not stand. However, in the subsequent trial, if there is one, the burden of proof will be on the prosecution and then, if there is any reasonable doubt of Zimmerman's guilt, he should be acquitted.


But it makes a big difference... (none / 0) (#16)
by unitron on Fri Aug 10, 2012 at 06:18:16 AM EST

...in the accuracy of a claim of "Witnesses to the effect that Travyon was beating George and wouldn't stop when told that the witness was going to call 911." if only one of the witnesses actually says they saw the beating part and that witness later "re-states" what they saw to leave out the actual hitting.

Unless "to the effect that" was put in to include a big ol' fudge factor.


Lets be accurate. (none / 0) (#20)
by lousy1 on Fri Aug 10, 2012 at 07:13:23 AM EST

The under 45 minutes of interrogation the witness says he couldn't actually see Martin's hands. However he could see Martin's arms, back and shoulders. Something in that picture lead him to the initial conclusion that Martin was striking Zimmerman.

The witness has also steadfastly maintained that Martin had mounted Zimmerman and was in control of the fight. This witness has yet to be questioned by the defense so the ambiguity introduced by he police interrogators is likely to be recast in terms even more sympathetic to Zimmerman's statements.

The injuries to Zimmerman head and face are documented. Martin did not exhibit any indication of being struck.

Even before defense depositions the recordings of the screams for help, the eye witness and the injuries are compelling evidence


The injuries may be documented... (5.00 / 1) (#30)
by unitron on Fri Aug 10, 2012 at 12:35:40 PM EST

...but where is it documented that he did not already have them before he left the house?

If you only have one person saying that Martin was actually hitting Zimmerman, then you don't have enough people saying so to change witness to witnesses.

Therefore "Witnesses to the effect that Travyon was beating George..." is not correct, unless, like I said, "to the effect that" was included to give the poster some wiggle room.


: That's funny. (none / 0) (#35)
by lousy1 on Fri Aug 10, 2012 at 01:18:39 PM EST

The paramedics documented Zimmerman as having fresh blood over half of his head and face. His nose was newly broken. He had laceration to the back of his face.
You actually thinks he needs to prove that he didn't leave his house for a drive to the store in that condition?
One person with the collaborating evidence seems to be more than enough.
However John can relate his observations and let reasonable people decide what they believe was happening. He at worst is a witness that lends credence to Zimmerman's statements. If asked the right questions he may be more.
His observation that TM was either pushing GZ down or punching him seems to indicate that Trayvon was causing the lacerations to the back of GZ's head.
That would make him a direct witness to the battering.

The Most Common Arguments for Conviction (none / 0) (#67)
by RickyJim on Sat Aug 11, 2012 at 07:53:09 AM EST

Well, the big three I see most often on the web.

Zimmerman's injuries were of a school yard variety, so minor that he had no reasonable fear of serious harm when he shot Martin.
Martin never showed previously any of the aggressive behavior that Zimmerman attributes to him (well, at least Martin's relatives say so).
Zimmerman on his NEN call, falsely profiled Martin as a criminal and showed a strong desire that he not "get away".

Sounds like there is enough here for a SYG hearing to not be a slam dunk for either side.


On the Web? (none / 0) (#68)
by lousy1 on Sat Aug 11, 2012 at 08:53:49 AM EST

Well, the big three I see most often on the web. (...)
Sounds like there is enough here for a SYG hearing to not be a slam dunk for either side

guess that would be more relevant if the hearing was held on the web rather than in a courtroom where it is subject to law.

Zimmerman's injuries were of a school yard variety, so minor that he had no reasonable fear of serious harm when he shot Martin.

The law does not require that an individual sustains injuries in order to claim self defense. The eyewitness evidence that Martin was battering GZ , had control of the fight and refused to stop combined with Zimmerman's screams for help should be sufficient to prove reasonable fear of bodily harm. ( BTW the evidence shows considerable damage was already done)

Martin never showed previously any of the aggressive behavior that Zimmerman attributes to him (well, at least Martin's relatives say so).

I am unaware of any evidence ( pro or con)regarding Martin's character. This will undoubtedly be rectified before the hearing

Zimmerman on his NEN call, falsely profiled Martin as a criminal and showed a strong desire that he not "get away".

Do you mean GZ saw a person acting suspiciously; reported that person to the police and hoped that the police would arrive before the subject of that suspicion disappeared(as others had)?


I Knew the First One to Reply... (none / 0) (#69)
by RickyJim on Sat Aug 11, 2012 at 10:12:34 AM EST

to refute the arguments would be Lousy1, ROTFL. You are right that just because these are what you read on the web, it doesn't imply that they will be the major arguments of the prosecution's case. The only other one I can think of, that might play a role, is some variant of "Liar, liar pants on fire." which, despite its limited probative value, might be important if Lester is the judge at the hearing. Please remind me of any that I might have forgotten to include.


: The states argument (5.00 / 1) (#70)
by lousy1 on Sat Aug 11, 2012 at 10:41:38 AM EST

seems to be that the act of leaving his car was the cause of Martins death.
That implies that they are not interested in factual disputes except perhaps they may claim it was Martin screaming for help.
They may amend this complaint by postulating that Zimmerman caused this outcry by pestering Martin for bail money.
I have to take the boys out camping for a week so feel free to assume that I won't be contradicting you. However I feel confident that others will not hesitate if warranted :)

well, there is the whole issue of mr. martin's (5.00 / 1) (#34)
by cpinva on Fri Aug 10, 2012 at 01:05:27 PM EST

rights to defend himself, under that very same SYG law:

Can anyone poke holes that with actual evidence?

as well, since none of that "actual evidence" has thus far been subjected to scrutiny at trial, to determine whether or not it is indeed factual, it would appear to lack standing as "actual evidence". so far, just allegations.

of course, that's the whole point of a trial, which i'm betting (BTD, you out there?) will happen.


I have two issues with your posting (5.00 / 1) (#37)
by lousy1 on Fri Aug 10, 2012 at 01:32:09 PM EST

No one has claimed that Martin was provoked threatened or assaulted. There is certainly no evidence to support that assertion. to the contrary, lead detective Serino admitted under oath that he had seen no evidence that Zimmerman had assaulted or threatened Trayvon.
We have all essentially of the Prosecution case. The State has shot its wad. Its a blank. Even assuming that the States evidence isn't contradicted it tends to establish that Zimmerman was acting in self defense.

If a SYG hearing refuses to free GZ do you believe that it is well based on the facts - or simply politics?


make sure I understand (4.50 / 6) (#44)
by NYShooter on Fri Aug 10, 2012 at 05:00:22 PM EST

if they rule in Zimmerman's favor, it will be "well based on the facts"

if they rule against Zimmerman, it will be "simply politics?"

is that about right?


: Are you asking me? (none / 0) (#46)
by lousy1 on Fri Aug 10, 2012 at 06:09:36 PM EST

from cpinva

...of course, that's the whole point of a trial, which i'm betting (BTD, you out there?) will happen.
I was asking cpinva why he was predicting the motion to dismiss would not be granted?

Hole Poking (none / 0) (#97)
by boar d laze on Tue Aug 14, 2012 at 01:30:13 PM EST

Yes.

No argument. However, the fact that the "kid" suffered no trauma whatsoever contradicts Mr. Zimmerman's story of a protracted conflict.
The shooter suffered only minor trauma. The subsequent medical examination diagnosis for Mr. Zimmerman's head injuries was "atraumatic" and "normocephalic." There was no indication of serious skull damage, nor of concussion. Again this contradicts Mr. Zimmerman's story.
As already noted, the one witness who said he saw Mr. Martin "wailing" on Mr. Zimmerman, "MMA style" recanted. If the defense calls this witness to support their case, they deserve what they'll get.
DeeDee's statement (and future testimony) regarding Mr. Martin's statements to her, and the statement from Mr. Zimmerman which she overheard are admissible under at least three exceptions to the hearsay rule.

Using the word "hearsay" as though you understand how it works in the context of the rules of evidence is all well and good. But it would be better if those who did use it actually understood how it worked. Just sayin'.

Oh, really?? (5.00 / 1) (#98)
by bmaz on Tue Aug 14, 2012 at 02:52:18 PM EST

That is your argument, it is certainly not fact (whether facts in evidence or otherwise). And, no, it does not necessarily mean that.
The point is not the gross amount of trauma, because lots of physical factors may impinge on that as to both protagonists; but, rather, the relative indicators and how they fit with the defendant's claim of self defense. Here, that lines up pretty well actually.
You are either biased or uninformed as to the nature of Witness 6, "John". Calling it a full "recant" is disingenuous, at best. The substance of the "new" version is as follows, and it is not all that far from the original version whatsoever:

"The black guy was on top," he told FDLE Investigator John Batchelor. "The guy that was on the ground, under him at that point, wrestling, was definitely a lighter color."
It was dark outside, he said, and at first, he thought he was witnessing a dogfight. When he stepped to the door, he realized it was two people on the ground wrestling.
The person on top was either hitting or pinning the other to the ground, he said. The person on the bottom was struggling to get up.

Deserve what they get? Seriously? You ever actually tried a homicide or ag assault case, or any felony crim case?

4) I agree Dee Dee's statements will find their way in if the state so desires. But you make no mention of the inherent problems, and they are manifold, with Dee Dee's statements. She was nowhere within many miles of the incident and saw nothing. She is incapable of putting her thoughts together spatial-temporally with the actual events. She demonstrates every characteristic imaginable of a terrible witness and one that would be eaten alive on cross (at least if you actually listen to her; have you done that??). Not to mention several aspects of Dee Dee's statement could be turned into Zimmerman's favor.

So, in conclusion, when you talk about understanding "how things work", you might look in the mirror. There are more than a few people here, including the proprietor of this blog, that have a pretty decent understanding of this area of the law.


Docket Sounding Before SYG Hearing (none / 0) (#3)
by RickyJim on Thu Aug 09, 2012 at 04:42:37 PM EST

The defense website also has an Aug. 7 posting,

The Court granted the defense team's Motion to Continue, which postpones the Docket Sounding scheduled on Wednesday August 8 until October 3. The purpose of a Docket Sounding is to provide the Court with an update regarding the progress of the case, and to establish a timeline for official legal proceedings, whether that be motion hearings, disposition, or trial.

They released what looks like a copy... (none / 0) (#8)
by unitron on Thu Aug 09, 2012 at 06:22:30 PM EST

...of a scan of a fax of a copy of a scan of a fax of the body, and also of the flashlight, and if you don't know which is which you can't tell which is which and even if you do know you still can't tell.

: I had to delete the comment you (none / 0) (#9)
by Jeralyn on Thu Aug 09, 2012 at 07:00:18 PM EST

are responding to because it had an overly long url not in html format. My update has the released discovery and asks not to discuss the improperly released discovery.

Comment misstating the facts (none / 0) (#14)
by Jeralyn on Fri Aug 10, 2012 at 01:35:37 AM EST

deleted. Please do not state your opinion as undisputed fact here.

i was sort of wondering when/if this hearing (none / 0) (#15)
by cpinva on Fri Aug 10, 2012 at 03:24:02 AM EST

would be requested, now i know.

so, if i read this correctly, mr. o'mara is asserting that state law supersedes federal law?

If the Court rules in favor of the defendant in a "Stand Your Ground" hearing, not only are criminal charges dismissed, the defendant is also immune from civil actions related to the shooting.

i ask because there is the (not so) small matter of mr. martin's federal civil rights being violated by mr. zimmerman, which would, of course, be a federal case, not subject to the whims of the FL state legislature. or am i wrong on this?

Based on the FBI reports (none / 0) (#17)
by lousy1 on Fri Aug 10, 2012 at 06:54:11 AM EST

Released in previous discovery a Federal case seems unlikely. The FBI interviewed 10-20 coworkers, acquaintances and neighbors of George Z.

They universally agreed that George was not motivated by racial animus.

Coincidentally all of them characterized GZ as non confrontational towards strangers even when provoked. He comes off sounding rather meek.


Zimmerman (none / 0) (#21)
by bmaz on Fri Aug 10, 2012 at 08:02:40 AM EST

Was not acting under color of law, so this actually is a far smaller, if not inapplicable, matter than you think.


What? (none / 0) (#22)
by lousy1 on Fri Aug 10, 2012 at 08:07:20 AM EST

Can you clarify?


Title 42 of the US Code Section 1983 (none / 0) (#23)
by bmaz on Fri Aug 10, 2012 at 08:25:32 AM EST

Provides the federal remedy for civil rights violations, but it requires the actor sought to be made liable to have acted under "color of law". Zimmerman was a private citizen when he did whatever he did (if he did anything wrong to start with, which is, as long discussed here, very debatable).


Thanks (none / 0) (#25)
by lousy1 on Fri Aug 10, 2012 at 09:44:27 AM EST

I wasn't aware of that.


Hate Crimes Act (none / 0) (#26)
by Cylinder on Fri Aug 10, 2012 at 09:58:45 AM EST

18 USC § 249

(a) In General.--
(1) Offenses involving actual or perceived race, color, religion, or national origin.-- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or,
through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person--
(A)shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
(B)shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if--
(i)death results from the offense; or
(ii)the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
[snip]
(b) Certification Requirement.--
(1) In general.-- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that--
(A)the State does not have jurisdiction;
(B)the State has requested that the Federal Government assume jurisdiction;
(C)the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D)a prosecution by the United States is in the public interest and necessary to secure substantial justice.

That is a criminal statute (5.00 / 1) (#29)
by bmaz on Fri Aug 10, 2012 at 11:44:01 AM EST

And does not alter the color of law element under 42 USC 1983


Then why (none / 0) (#38)
by lousy1 on Fri Aug 10, 2012 at 01:34:34 PM EST

did the DOJ dispatch an FBI investigation team to Sanford Florida?


to see if there was.... (none / 0) (#40)
by bmaz on Fri Aug 10, 2012 at 02:32:08 PM EST

...any basis whatsoever for application of the federal criminal statute. There wasn't.


I am not aware of (none / 0) (#48)
by lousy1 on Fri Aug 10, 2012 at 06:30:40 PM EST

any public conclusions pertaining to the FBI investigation. Do you know of one?


: Yes (none / 0) (#80)
by bmaz on Sat Aug 11, 2012 at 09:13:31 PM EST

They found no racial animus. Check the discovery.

Not following you. (none / 0) (#89)
by Gandydancer on Mon Aug 13, 2012 at 12:52:05 PM EST

You seem to be saying that the inapplicability of 42 USC 1983 also defangs 18 USC 1983, but I'm not clear as to why.


: No, (none / 0) (#92)
by bmaz on Mon Aug 13, 2012 at 05:05:46 PM EST

For a criminal charge under 18 USC 249, there must be racial animus found. The DOJ/FBI found there was none, so no criminal prosecution. 42 USC 1983 requires the actor be acting under the color of law; Zimmerman was not.

Probably mandamus instead of prohibition... (none / 0) (#19)
by rhbrandon on Fri Aug 10, 2012 at 07:09:34 AM EST

Mandamus would compel a judge to sustain an motion that he should've granted; prohibition prevents a judge from acting in excess of his authority.

Although in Missouri, the two have essentially been subsumed into each other since both involve the misuse of judicial authority and presumably a misuse is an excess. When I'll file one, I'll ask for one and then the other in alternative.

: Definitely prohibition (none / 0) (#39)
by MJW on Fri Aug 10, 2012 at 02:28:39 PM EST

See, for instance, Dennis v. State, 51 So. 3d 456 (Fla. 2010) and Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

: it's a writ of prohibition (none / 0) (#53)
by Jeralyn on Fri Aug 10, 2012 at 09:14:15 PM EST

Rice v. State (June 2012)

[T]here is no question that prohibition was the appropriate relief for Rice to seek after the trial court denied his motion to dismiss based on his claim of immunity under the Stand Your Ground law. See Tsavaris v. Scruggs, 360 So. 2d 745, 747 (Fla. 1977) ("Where a case is pending in the criminal court against a person claiming immunity . . . it would be the duty of the criminal court involved to give effect to such immunity if it existed. Should the criminal court in such a case refuse to recognize the immunity the further action of that court in prosecuting the cause would amount to an excess of jurisdiction which then would be subject to restraint by rohibition.")

Can the SYG hearing acquit Z of 2nd degree.... (none / 0) (#50)
by David in Cal on Fri Aug 10, 2012 at 08:14:54 PM EST

...murder, but allow him to be tried for manslaughter?

Probably not (5.00 / 1) (#60)
by Jeralyn on Fri Aug 10, 2012 at 09:56:22 PM EST

According to Yaqubie (2010) the judge cannot resolve the issue of intent for second degree murder before trial at a motion to dismiss. The court in Yaqubie ordered the trial court to hold a STG evidentiary hearing on the facts of self-defense, but reversed the trial court's order reducing murder 2 to manslaughter saying intent is for the jury to decide.

But the judge can (and must) grant a motion for judgment of acquittal at the close of the Government's case or close of all the evidence on the murder 2 if the state fails to present evidence legally sufficient to overcome the defense theory of self-defense. See the 2011 Stieh case.

But where the evidence " 'leaves room for two or more inferences of fact, at least one of which is consistent with the defendant's hypothesis of innocence, [it] is not legally sufficient to make a case for the jury.' "
...Here, although there was conflict among the
testimony of the victim, Flaherty, the victim's girlfriend, and Stieh, the conflict was relatively minor and did not rebut or otherwise foreclose Stieh's theory of innocence. Therefore, the trial court should have granted Stieh's motion for judgment of acquittal.

If the state doesn't sufficiently refute GZ's self-defense claim, at trial, neither murder 2 nor manslaughter should go to the jury. If it does present enough evidence to refute self-defense, depending on what that evidence is, it could go to the jury on murder 2 and/or manslaughter. The jury would then decide the self-defense issue, and if it didn't find for GZ on self-defense, it would decide whether he was guilty of murder 2 or manslaughter (assuming both survive the MJA and go to the jury. If only manslaughter survived, it would decide that charge if it rejects self-defense.)


: So two different things (none / 0) (#61)
by Jeralyn on Fri Aug 10, 2012 at 10:07:02 PM EST

The SYG is one opportunity and trial is another.
If GZ establishes self-defense at a SYG hearing by a preponderance, the case is dismissed. If he doesn't, he gets another shot at trial, and the judge could toss all the charges, or just murder 2, letting the jury consider manslaughter, on a motion for judgment of acquittal at the close of the evidence. The jury would still be allowed to consider self-defense to either or both charges.

The charge is not the issue. (none / 0) (#56)
by lousy1 on Fri Aug 10, 2012 at 09:31:52 PM EST

IANAL
but as I understand it...

A SYG hearing or Jury charge is strictly confined to justifying the use of force or deadly force. If the defendant is exonerated in that use of force then the exact charge is not relevant. He is automatically innocent of all lesser included charges.

If GZ was justified using force to save himself from death or great bodily harm then all his efforts to defend himself are immune from criminal charges.

Once self defense is established murder, manslaughter or even assault are off the table. This is not AFAIK particular to the SYG statue, Self defense, when granted, is a legitimate defense to a plethora of potential charges in all 50 states.

One caveat is that the immunity only extends to that one act.

For instance lets assume that for no reason X beats you to a pulp and several minutes latter you find X and retaliate. If X has a reasonable fear for his life during that retaliation he can legally kill you. However X is still responsible and culpable for the initial assault.
IANAL


If Zimmerman gets immunity... (none / 0) (#93)
by Gandydancer on Tue Aug 14, 2012 at 12:55:50 AM EST

...how does that affect the Martin's potential suit against the HOA (at this stage merely an insurance claim), if it does?